The Election Commission of India is an independent Constitutional body constituted under Article 324 of the Constitution,[1] which provides for the appointment of an Election Commission to the superintendent, direct, control elections, conduct elections to the Parliament and the Legislature of every State and elections to the offices of President under Article 55 and Vice-President under Article 66 of the Constitution.[2] Accordingly, the Election Commission of India was established on 25th January 1950. Initially, it had only one Chief Election Commissioner, but at present, it consists of one Chief Election Commissioner and Two other Election Commissioners also.

Composition
The constitution provides that:
"The Election Commission shall consist of the Chief Election Commissioner and a such number of other Election Commissioners, if any, as the President may from time-to-time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President".[3]

The constitution further provides that CEC (chief election commissioner) should be the chairman of the election commission.[4]

Since independence there was only one head of the Election Commission i.e., Chief Election Commissioner. However, in 1993 the then government amended the law and brought an Ordinance[5] with President's assent under Article 342(2)[6] of the Indian Constitution fixing the number of ECs at two and appointed Mr. M.S. Gill and Mr. G.V.G. Krishnamurthy as the two EC's. The then CEC, T.N. Seshan accused the govt. of taking such an action to prevent him from taking any action against alleged violation of code of conduct by the ruling party and also curb his powers.

Thus, he (along with few other petitioners) moved the Supreme Court by way of a writ petition. They also argued that Section 9[7] and 10[8] of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991are ultra vires the constitution and inconsistent with Article 324 of the Indian Constitution as the said Article did not give any power to Parliament to frame rules for transaction of business of the EC

In T.N.Seshan v/s Union of India,[9] five-judge Constitution bench of the Supreme Court comprising Justice Ahamadi CJ, J.S.Verma, N.P.Singh, S.P.Bharuch and M.K.Mukharjee upheld the validity of Act equating the status, power and authority of other two election commissioners with the Chief Election Commissioner. The CEC is the primus inter parties, i.e., first among the equals in the multimember body. The appointment of ECs ensures a system where there are checks and balances on the CEC to ensure that it does not have uncontrolled powers.

The constitution also provides for the appointment of Regional Commissioners to assist the Election commission in the performance of the functions, before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council.[10]

Tenure And Salary

Ultimately, the President has the power to appoint Chief Election Commissioner and other Election Commissioners.[11] Their tenure is six years or 65 years whichever is earlier[12] and they have the same status and receive perks as available to Judges of the Supreme Court of India.[13] They are also liable for pension which is equal to the pension payable to a judge of Supreme court and also such pensions like family pension and gratuity as are admissible to a judge of the supreme court.[14]

The Parliament has empowered to make laws in connection with the election to Parliament and State Legislatures.[15] By exercising this power Parliament enacted several laws such as the Representation of the People Act, 1951, the Presidential and Vice-Presidential Elections Act, 1952, the Delimitation commission act, 1952, The Constitution (Fifty-Second Amendment) Act, 1985 (The Anti-defection law), the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 etc. Similarly, the State Legislature also empowered to make laws to the election matters at the state level that is not made by Parliament.[16]

Powers And Functions Of ECI:

The election Commission performs the various functions for maintain the democratic structure by organizing elections free and fairly. Elections to the house of people and to the legislative assemblies of state to be on the basis of adult suffrage.[17]

Apart from it other functions are as follow:

• Conducting free and fair elections:
  The fundamental function of the Election Commission of India is to hold and ensure free and fair elections in India. All of the ECI's other functions are directly related to ensuring unbiased and peaceful electoral practices and participation among the citizens of the country.
  
  The ECI is in charge of conducting the following elections:
  
  1. Parliamentary elections (Lok Sabha and Rajya Sabha- after every 2 years)
  2. State legislative assembly elections
  3. President and Vice-president elections. [18]
  4. Parliament and state legislature by-elections (if the need arises)
      
• Preparing electoral rolls[19]:
  An electoral roll is a compiled list of persons who are entitled to or eligible to vote in a particular type of election. The Election Commission of India should prepare these rolls correctly. For this, citizens need to register as voters with the ECI. It is the power of parliament to make provision with respect. elections including preparation of electoral rolls.[20] no person is ineligible for inclusion in electoral roll on the ground of religion, race, caste or sex.[21]
   
• Issuing Voter ID cards:
  The Voter ID card is an identity document issued by the Election Commission of India to every citizen of India 18+ years and above. This voter ID is mandatory to be considered eligible for voting.
• Recruiting staff as and when required:
  The ECI appoints staff members to conduct the elections smoothly. The Election Commission of India can request the government for the recruitment of staff (for example from the army or police) for proper organization of elections and to prevent malpractices such as rigged voting, false voting, booth jams and such.
   
• Appointing election observers:
  Closely related to the previous point is the appointment of election observers. Observers for the Election Commission of India are appointed by the powers conferred by the Representation of People Act 1951.[22] They assist the ECI to ensure free and fair elections without any violence or malpractices.
   
• Observing political parties:
  The election commission must monitor the behavior and actions of political parties during the elections.
   
• Planning the election schedule:
  The ECI plans the election schedule which is then presented by the Election Commissioner through a press conference.
   
• Conducting bye-elections:
  The election commission is also responsible for conducting bye-elections in any constituency whenever the need arises.
   
• Cancellation of election:
  If the situation arises, the Election Commission of India has the power to postpone or cancel elections. If an election is canceled, the ECI has to order a fresh one.
   
• Recognizing new political parties:
  An aspiring political party can only be validated and recognized by the Election Commission of India. Allotting party symbols: Once, it has been recognized, the party symbol is allotted by the Election Commission as well.
   
• Disqualification of candidate:
  The Election Commission of India has the right to disqualify candidates if they have not filed their election returns to the ECI on time. Similarly, the ECI advises the president to remove MPs and MLAs if they are found guilty of any sort of malpractice as per guidelines.
   
• Providing information to the media:
  Mandatorily, the Election Commission of India must provide regular information and updates to the media concerning the preparation for elections, polling and its conduction. For this, the ECI releases press.[23]
   
• The Quasi-judicial role:
  The election commission performs some quasi-judicial functions such as ensuring that the model code of conduct is followed in the area(s) where elections are being held. The ECI also advises on matters when any electoral malpractice is involved or suspected.[24] Systematic Voters' Education and Electoral Participation.

'Greater Participation for a Stronger Democracy 'Systematic Voters' Education and Electoral Participation program, better known as SVEEP, is the flagship program of the Election Commission of India for voter education, spreading voter awareness and promoting voter literacy in India. Since 2009, we have been working towards preparing India's electors and equipping them with basic knowledge related to the electoral process.[25]

SVEEP's primary goal is to build a truly participative democracy in India by encouraging all eligible citizens to vote and make an informed decision during the elections. The programme is based on multiple general as well as targeted interventions which are designed according to the socio-economic, cultural and demographic profile of the state as well as the history of electoral participation in previous rounds of elections and learning thereof.

Bar To Interference By Courts In Electoral Matters Notwithstanding Anything In This Constitution

The validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any court and No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. [26]

Need For Reforms

• Various committees like Justice Tarkunde Committee (1975), Dinesh Goswami committee (1990), Law Commission (2015) have recommended that Election Commissioners be appointed on the advice of a committee comprising the Prime Minister, the Lok Sabha Opposition Leader and the Chief Justice of India.
   
• 2nd Administrative Reforms Commission recommended that the Law Minister and the Deputy Chairman of the Rajya Sabha should also be included in such a Collegium

The decision of election commission is made by majority vote. So, it is important that the Article 324(5) of the Constitution must be amended to equate the removal procedures of the two Election Commissioners with that of the Chief Election Commissioner.

Thus, equal constitutional protection should be given to all members of the ECI in matters of removability from office. Currently, the CEC cannot be removed except in like manner and on the grounds as a judge of supreme court but the removal of other election commissioners is on the advice of CEC. So, there is urgent need for reform and the recommendations of the committees must be implemented.

End-Notes:

1. Mahendra P. Singh, V.N. Shukla's, Constitution Of India, (ed., 10th).
2. Id.
3. Indian Const. art. 324(2).
4. Indian Const. art. 324(3).
5. The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Ordinance, 1991.
6. Indian Const. art. 342((2).
7. 9, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
8. 9, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
9. 1995 SCC (4) 611.
10. Indian Const. art. 324(4).
11. Indian Const. art. 324(2).
12. 4, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
13. 3, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
14. 6, The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
15. Indian Const. art. 327.
16. Indian Const. art 328.
17. Indian Const. art 326.
18. Indian Const. art 324 (1).
19. Id.
20. Indian Const. art 328.
21. Indian Const. art 325.
22. 20 A, Representation of the People Act, 1951.
23. Election commission of India, available at https://eci.gov.in/files/category/11-press-releases/ (last visited: sept, 15, 2022)
24. Naquiya Nadeem, Election Commision Of India, (26- March 2021) available at Election Commission of India: Functions and Importance. (ixambee.com). (last visited: sept 16, 2022)
25. Election commission of India, Available on Voter Education - Election Commission of India (eci.gov.in), (last visited: sept. 17, 2022).
26. Indian Const. art 329.